Sanjay Kumar Dalmia And Anr. vs Tobu Enterprises Limited
2001 Latest Caselaw 352 Del

JUDGMENT

S.K. Mahajan, J.

1. With the consent of parties the matter has been heard and is being disposed of finally.

2. Plaintiff/respondent had filed suit for rendition of accounts on the allegations that the respondents/defendants were appointed as C & F agents by the plaintiff for the State of Bihar and an agency agreement dated 26th August, 1995 was duly entered into between the parties. Under the agreement, the respondents were entitled to commission at the rate of 5% for the working done by them for the plaintiffs. It is submitted that the defendants failed to fulfill their obligations under the agency agreement and they were, therefore, repeatedly called upon by the plaintiff to settle the accounts and pay the amount allegedly due to the plaintiffs but the defendants had been intentionally avoiding the same. It is submitted that plaintiff was entitled to a decree for rendition of accounts. It is further submitted that a sum of Rs. 7,27,738.46 paise remained to be accounted for by the defendants. it is submitted that the plaintiffs withheld with them a sum of Rs. 2 lacs deposited by the defendants as security which was liable to be adjusted/forfeited towards the amount allegedly due to the plaintiff. It was submitted that on true and faithful rendition of accounts by the defendants, a sum of approximately Rs. 5 lacs after giving adjustment of the security amount would be due from the defendants to the plaintiff.

3. On notice being served, the defendants filed their written statement and it was stated that the defendants were not liable to render any account to the plaintiff and on the other hand certain amount was due from the plaintiff to the defendants. It was stated that the defendants were ready to settle the matter with the plaintiff in case the plaintiff was willing to refund the amount of security Along with interest. Prior to the filing of the suit, the plaintiffs had sent a notice dated 26th May, 1997 reply to which was given by the defendants on 15th June, 1997. In their reply it was stated by the defendants that certain amount, details of which had been in paragraph 8 of the reply, amounting to Rs. 8,74,875.50 paise was due from the defendants to the plaintiff. It was further stated in the reply that after adjustment of the amount allegedly due from the defendants to the plaintiff, a sum of Rs. 1,47,137.04 paise was still due from the defendants to the plaintiff. This plea and the details of the amount mentioned int he reply dated 15th June, 1997 to the notice of the plaintiff was not taken in the written statement. Defendant, therefore, filed an application in the Trial Court under Order VI Rule 17, CPC for amendment of the written statement. In the application for amendment, the defendants had stated that though in the written statement by they had mentioned that a sum of Rs. 1,24,764.51 paise was due from the plaintiff to the defendants, however, details as to how this amount was due were not given in the written statement. Plaintiff, therefore, wanted to make amendment in the written statement so as to give details of the amount due from the plaintiff to the defendants. The defendants also sought to amend the verification of the written statement. By the impugned order, learned Trial court dismissed the application of the defendant for amendment of the written statement. Aggrieved by the order refusing the defendant to amend the written statement, present petition was filed by the defendant.

4. It is contended by learned Counsel for the petitioner that defendants had already taken the plea of certain amount being due from the plaintiff to the defendants as early as in June, 1997 in their reply to the notice received from the plaintiff. It is, therefore, submitted that there was no question of the defendants setting up a new case or to introduce any fact which may change the nature of the defense already taken by the defendant. It is submitted that the Trial Court has clearly erred in refusing the petitioner to amend the written statement in the manner proposed in the application.

5. Learned Counsel for the respondent, however, has submitted that despite an order by the Court to the parties to the suit to produce in Court all the debit notes and other connected documents, vouchers, etc. of the firm, the said documents were not filed and on the other hand it was stated in the written statement by the petitioner that the documents and accounts had been returned to the plaintiff. It is therefore, the submission of the respondent that in case the accounts had been returned by the defendants to the plaintiff, from where these accounts have now been prepared by the defendants and, according to him, it clearly shows that the defendant was trying to manipulate the accounts and change the nature of defense already taken in the written statement. Learned Counsel has also relied upon the judgments reported as Baldev Steels v. Empire Dyeing, 1995 RLR (Notes) 4 and Kaluram v. Shakuntala Devi, , to contend that in case the nature of defense taken by the defendant is sought to be changed or a document is sought to be introduced which is a private document, the Court can refuse to permit the defendants to amend the written statement. It is, therefore, his submission that the proposed amendment is wholly mala fide and the Trial Court has rightly dismissed the application for amendment of the written statement.

6. In my view, judgments referred to by learned Counsel for the respondent are not applicable to the facts and circumstances of the present case. It is now well settled that all amendments which do not change the nature of the defense taken in the written statement or which can be allowed without in any manner causing prejudice to the opposite party should be permitted to be allowed by the Court. The object of Rule 17 is that the Courts should get at and try the merits of the case that comes before them and should consequently allow all amendments that may be necessary for determining the real matter in controversy between the parties without causing injustice to the other side. It is also now well established that the object of the Courts is to decide the right of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Courts are meant for purposes of doing justice between the parties and not to punish them. The defendants in their reply to the notice received from the plaintiff had clearly stated the amount which was due from the defendants to the plaintiff and the amount which was liable to be adjusted against the amount and after the adjustment the amount which will be found due from the plaintiff to the defendants. These details having already been given in reply to the notice, in my view, no prejudice would have been caused to the plaintiff in case the defendant was permitted to take those pleas which had already been taken in reply to the notice. The amendments which were sought to be made were only clarificatory in nature and the defendants were not introducing any new defense nor the nature of defense already taken was sought to be changed. Amendment sought to be made in written statement was necessary and relevant for deciding the real matter in controversy between the parties. In my view, therefore, learned Trial Court has clearly erred in not permitting the defendants to amend the written statement in the manner proposed in the application. There is thus a clear illegality in the order of the Trial Court.

I, accordingly, allow this petition, set aside the order of the Trial Court and permit the defendants to amend the written statement in the manner proposed in the application, subject, however, to the payment of Rs. 2,000/- as costs.

7. Petition allowed.